The opinion of the court was delivered by: RAMBO
This action was initiated when plaintiff filed a complaint in the Court of Common Pleas of Lycoming County, Pennsylvania on April 28, 1978, in which she alleged the defendant had wrongfully denied insurance coverage for damage to a waterproofing membrane caused by a flood in September, 1975. The case was removed to this court pursuant to 28 U.S.C. §§ 1441(b) and 1442(a)(1). Plaintiff's motion to remand was denied by this court on July 18, 1980, 494 F. Supp. 234, as was defendant's motion to dismiss. Presently before the court is defendant's motion to dismiss or in the alternative, for summary judgment.
Defendant also argues that plaintiff did not comply with the terms of the SFIP in that she did not file a written proof of loss claim covering the waterproofing membrane within the sixty day limit.
Plaintiff, in her brief in opposition to defendant's motion to dismiss or for summary judgment, does not directly refute defendant's allegations but contends that the written proof of damage requirement was, in effect, waived by defendant (or its agent) and that defendant should be estopped from claiming the sixty day proof of loss requirement since it has not been raised heretofore. Plaintiff did not address the issue of whether or not the action is time barred by the one year statute of limitations.
The uncontested facts of record indicate that defendants were aware on January 19, 1976 that a claim for the waterproofing was filed or would be filed; that an inspection of the membrane by defendant's agents resulted in the plaintiff being notified on January 20, 1976 that the two estimates of repair of the waterproofing membrane would not be honored; that on April 22, 1976, plaintiff's counsel contacted defendant's agent and was informed that the "claim" for the alleged damage to the waterproofing membrane would be denied; that plaintiff did not file this action until April 28, 1978; and that plaintiff never filed a written proof of loss claim concerning the waterproofing membrane. Based upon these undisputed facts, it is clearly seen that plaintiff did not file a claim within the time prescribed by the statutes, the regulations, and the contract.
Plaintiff obfuscates the issue with her argument regarding estoppel. Plaintiff has not alleged that defendant made representations to the effect that she would not have to comply with the sixty day proof of loss requirement or the one year limitation on initiating suit, nor would the record support such an allegation.